Prying in the Name of Diversity

The results are in. Of the 1,005 California judges who responded to a government survey released last week, 969 identified themselves as heterosexual, 19 as lesbians and 17 as gay men.

We know this — though it’s none of our business — because of a highly intrusive law passed by the Legislature last year. Under its provisions, every judge in the state, as well as all judicial applicants, nominees and appointees, is asked to provide information about his or her “gender, gender identity and sexual orientation.”

The statute that authorizes this new intrusion into judges’ private lives was enacted after lopsided votes in both the Assembly (52 to 25) and the Senate (23 to 15). But if the Legislature seemed to have no concern about the bench’s privacy, many of the state’s judges do. Some 40% of those surveyed didn’t answer the question on this year’s survey.

The goal of the legislation, according to those who backed it, was to promote greater diversity on the bench. But treating sexual orientation as if it were totally analogous to race, gender or ethnicity is wrong. Of course people should be protected from discrimination in employment or public accommodations because of their sexuality. But there’s no justification for the next level of intrusion — seeking to develop demographic data to ostensibly further “diversity.”

The law’s author, Senate Majority Leader Ellen Corbett (D-San Leandro), said she was trying to rectify a “deficiency in current law” by collecting “self-reported information to help identify diversity of sexual orientation or gender identity and gender expression, or lack thereof.” But do we really want sitting judges and justices, and prospective appointees, to be asked to reveal to a government bureaucrat what their preferences in the bedroom are? Is it anyone’s business? Is it relevant?

In an effort to balance the obvious privacy issues caused by a prying governmental agency, the statute mandates that answering the question is voluntary, and the agency reports that only “aggregate” statistical information by “specific jurisdiction” will be released. Aggregating information, however, is not enough to protect judges’ privacy. In counties with hundreds of judges such as Los Angeles and San Diego, it might be. But what about in jurisdictions where there are very few judges? Mono, Alpine, Plumas, Sierra, Calaveras and eight other counties have only two judges, and nearly 30 of the state’s counties have 10 or fewer judges.

People might start speculating about which judges are the straight, gay, transgender or bisexual ones among the handful in each county. Would that really promote diversity on the bench? Or would it be more likely to lead to a reluctance by some prospective gay jurists to put themselves forward?

There is a further lapse in logic in the seemingly well-intentioned effort to know “how the lesbian, gay, bisexual and transgender community is being represented in the judiciary.” Is it relevant to the administration of justice or the appearance of fairness to engage in promoting sexual orientation diversity on the bench?

In the case of visible minorities, one can make the argument that litigants and others with business before the courts are put at ease by seeing individuals on the bench who look like them or who share their ethnic background. Having an all-male or all-white judiciary can distance the bench from both the bar and litigants. But a judge’s sexual orientation isn’t automatically discernible, nor should it be. It’s something we simply don’t need to know, just as we don’t need to know whether a judge is left-handed or right-handed, or a twin.

One might argue that diversity of sexual orientation is necessary for the sake of the type of justice dispensed, but a ruling in the recent Proposition 8 case (the ban on gay marriage) disproved that notion out of hand. The fact that the trial judge on the case was a gay federal jurist in a long-term, same-sex relationship was found by a higher court to be irrelevant to the substance of his ruling. The presiding judge hearing the appeal ruled that assertions of differential justice being dispensed because of the judge’s sexual orientation and relationship were “warrantless” and were, in fact, “intimate but irrelevant details of his (the judge’s) personal life.”

California’s legislators mindlessly enacted a law in service of political correctness that is pernicious in its application and insidious in its potential impact.

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